June 16, 2006
John Prados is a senior fellow of the National Security Archive in Washington, D.C., and author of Hoodwinked: The Documents that Reveal How Bush Sold Us a War (The New Press).
Attorney General Alberto R. Gonzales is as assiduous a pursuer of leaks as any plumber.
In May, Gonzales startled the public when he said in an interview that “there are some statutes on the books ” that provide government the legal authority to prosecute journalists for publishing articles containing classified information. He was referring to the Espionage Act of 1917, under which Gonzales is attempting to create a precedent by trying two policy analysts of the American-Israel Public Affairs Committee accused of leaking national security information to a journalist and a diplomat.
In April, a month before the Gonzales appearance on the Sunday talk shows, it became known that the FBI had attempted to gain entry into the private papers of deceased journalist Jack Anderson, who for years wrote a nationally-syndicated column that laid bare a multiplicity of closely-held government secrets. The Senate Judiciary Committee held a hearing on June 6 to illuminate the entire question of the Bush administration’s pursuit of leakers. There, Deputy U.S. Attorney Matthew W. Friedrich refused to explain the FBI’s action against Anderson, but affirmed that the government can prosecute “anyone”—including journalists—for making known classified information.
The case of Jack Anderson sheds light on the government's own practice of leaking classified information—at times to achieve political advantage. As a war correspondent for The Army Times and for radio during the Second World War, Anderson managed to find his way to one of the more hush-hush operations of the CIA of that day, the Office of Strategic Services. Their Detachment 101 ran guerrilla bands against the Japanese in the Burmese jungle. Asked what he was doing there, Anderson replied, “I’m here to make you famous.”
On returning, Anderson paired with columnist Drew Pearson, working at Parade magazine, then took over the Pearson column in his own right for decades, regularly reporting on national security issues. Anderson got his information from both friends and enemies, some of them quite highly placed. Among his sources were Pentagon generals, Senator Joe McCarthy (who later became an enemy), William Rogers (Attorney General in Eisenhower’s administration and Secretary of State in Nixon’s), John F. Kennedy, Lyndon B. Johnson, Hubert H. Humphrey, Nixon political aide Murray Chotiner, Mafia capo Johnny Rosselli and many more.
Jack Anderson used his information to report a wide variety of stories, from Joe McCarthy’s peccadilloes to the excesses of presidents, from sloppy spy work to misguided weapons programs. His articles got under the skin of many—generals, spooks, quite a few presidents and top Washington pooh-bahs.
His columns revealed CIA efforts to use the Mafia to assassinate Fidel Castro, Nixon administration cooperation with corporate giant International Telephone and Telegraph (ITT) on the 1972 Republican nominating convention, Nixon collaboration with ITT on CIA covert operations against Chile, Nixon and Kissinger machinations against India, flaws in Reagan administration military development programs, shortcomings in CIA analyses of the Soviet Union, and much much more.
In his wide-ranging memoir, Jack Anderson writes (with some satisfaction) of the FBI’s compiling a massive file on him, being put under surveillance by the CIA and of at least 11 leak investigations conducted by the Pentagon following stories of his.
Consider this example from recently declassified National Security Agency documents related to the 1964 Gulf of Tonkin incident, which sparked Johnson administration escalation of the Vietnam War. That event began with a battle between a U.S. warship and North Vietnamese torpedo boats on August 2, 1964. Two weeks later Jack Anderson published a column recounting that the American vessel had advance warning of the attack. Within days the NSA and the management board of the U.S. intelligence community considered whether to attempt to prosecute Anderson under the Espionage Act. But the NSA’s top lawyer could not argue that the Anderson article violated the law—he deferred to the judgment of the Attorney General on that issue—and maintained that a connection between NSA intercepts and the article would be difficult to prove. The spooks ultimately did nothing.
We know from declassified documents already in the public domain that the NSA intercepts had been sent to the White House in the immediate aftermath of the Gulf of Tonkin incident, and from the Anderson memoir that President Johnson often flashed secret documents before the journalist when they met at the White House. At the moment of this episode, Johnson was anxious to refute charges from Republican candidate Barry Goldwater that the president had authorized the use of atomic weapons during the incident. Showing that the destroyer knew what was happening would have served to demonstrate that Johnson had no reason to overreact. Did LBJ himself give Anderson the material for that column? A second confirmation was already available: Senate floor debate on the Gulf of Tonkin Resolution had included the basic fact of the prior warning—one of the reasons the NSA lawyers had advised against opening any criminal investigation.
This episode illustrates quite clearly the basic dynamic that exists between the executive branch and the press. Presidents want and need the press to put out the messages they want. If Lyndon Johnson did indeed leak the NSA Gulf of Tonkin intercepts, that is no different in principle from Vice President Dick Cheney instructing his former chief of staff, Scooter Libby, to leak the 2002 Iraq National Intelligence Estimate. These are political actions taken for political purposes. The same was true of a host of other Bush administration leaks: the notorious Iraq aluminum tubes story, excerpts from U.S. interrogations with captured al-Qaida terrorists Abu Zubaida and others, data alleging “bulletproof” links between Saddam Hussein and al-Qaida, the report of a Pentagon intelligence unit on that very subject and many more.
In contrast to Alberto Gonzales’s statement that “we have an obligation to enforce the law and to prosecute those who engage in criminal activity,” not one of those leaks was investigated. The issue only arises when leaks contain information an administration does not want to see in the media. That is not enforcing the law.
In fact, the legislative history of the Espionage Act shows the opposite of what the Bush people claim. During congressional action on that bill, President Woodrow Wilson asked Congress to enact censorship provisions and include penalties for journalists. Led by Republican senators, Congress refused. As the late Senator Daniel Patrick Moynihan, who headed a 1990s Commission on Protecting and Reducing Government Secrecy and researched this history, wrote in his book Secrecy , “the Espionage Act did not contain the censorship provision.” Indeed, the Moynihan Commission’s own report found that in 1957, at the height of the Cold War, a secrecy board recommended legislative provisions for powers of the type Alberto Gonzales now claims already exist, and the Eisenhower administration could not gain any traction for them. The Espionage Act aims specifically at the leaker (President Johnson, Vice President Cheney) not the journalist, and it criminalizes action in behalf of a foreign government, not the news media.
Targeting journalists under law that does not exist is not admissible. Far from protecting national security, this poses a direct threat to American democracy.
“Chill your mouth,” says my younger daughter when she wants to stop the conversation. It is the latest entry in the lexicon of youth, and it is oddly resonant. That is exactly what the Bush administration is saying, and it is chilling.